Considered and decided by Shumaker, Presiding
Judge; Klaphake,
Judge; and Worke,
Judge.

U N P U B L I S H E D O P I N I O
N

KLAPHAKE, Judge

Manuel Junior Velez appeals from his
conviction for first-degree assault in violation of Minn. Stat. § 609.221
(2004). Consistent with a plea agreement
in which appellant waived the right to have facts to be used at sentencing
determined by a jury, the district court imposed a 138-month executed sentence,
an upward durational departure from the 86-month presumptive sentence under the
Minnesota Sentencing Guidelines.
Appellant claims that his plea was not made intelligently because at the
time it was entered, Blakely v. Washington,
542 U.S. 296, 124 S. Ct. 2531 (2004), mandated that the facts supporting an
aggravated sentence be determined by a jury, but the sentencing court in this
case had no authority to convene a sentencing jury. Appellant argues that the sentencing
guidelines amendments authorizing jury impanelment did not apply to his case
because they took effect after the date of the offense. See
State v. Shattuck, 704 N.W.2d 131, 143 (Minn. 2007) (holding that,
consistent with Blakely, the
Minnesota Sentencing Guidelines were unconstitutional “insofar as [they]
permit[ed] an upward durational departure based on judicial findings”). Because this precise issue was resolved in Hankerson v. State, 723 N.W.2d 232
(Minn. 2006), cert. denied, 128 S.
Ct. 42 (Oct. 1, 2007), we affirm.

D E C I S I O N

In
Hankerson v. State, 723 N.W.2d 232
(Minn. 2006), cert. denied, 128 S.
Ct. 42 (Oct. 1, 2007), the supreme court addressed the application of Blakely v. Washington, 542 U.S. 296, 124
S. Ct. 2531 (2004), to a case where the offender’s conviction predated the
effective date of the amendment to the relevant Minnesota statutes and the
Minnesota Sentencing Guidelines providing for sentencing juries.[1] There, the supreme court ruled that the
district court was authorized to impanel a resentencing jury after Hankerson
was initially sentenced in violation of Blakely,
stating that “[n]othing in the former language of Minn. Sent. Guidelines II.D
prohibits a court from imposing a sentence based on facts found by a
jury.” Hankerson, 723 N.W.2d at 236.
The court noted that the statutory amendments to Minn. Stat. § 244.10
(2004) and the pre-amendment version of the sentencing guidelines authorize a
district court to “impanel a sentencing jury” and “to use the jury’s findings
to impose a new sentence, including, where appropriate, an aggravated sentence”
for a conviction obtained before the effective date of the amendments. Id.

Here,
appellant’s offense occurred before the effective date of the amendments to the
sentencing guidelines and statutes that authorized a sentencing jury, but his
plea agreement waiving his right to have a jury determine the facts supporting
an aggravated sentence occurred after the effective date of the amendments. The amendment to Minn. Stat. § 244.10
authorizing the district court to convene a jury to make findings for upward
departures applied to “sentencing hearings, resentencing hearings, and
sentencing departures sought on or after” the effective date of the amendment,
even though the offense may have occurred prior to the effective date. 2005 Minn. Laws. ch. 136, at 1115-16. Thus, at the time of appellant’s plea
agreement, the court had the authority under the amended statute to impanel a
sentencing jury. The amendments to the
sentencing guidelines authorizing the district court to use the findings of a
sentencing jury, however, are prospective only and apply only to offenders
whose date of offense is on or after the effective date of the amendment. 2005 Minn. Laws ch. 136, art. 16, § 14 at
1119. But the Hankerson court found that nothing in the former language of the
guidelines prohibited a court from imposing a sentence based on facts found by
a jury. Hankerson, 723 N.W.2d at 236. Therefore, because the district court had the
authority to impanel a sentencing jury at the time of the plea and could have
used the facts found by such a jury in imposing an aggravated sentence, we
reject appellant’s argument that he made an invalid waiver of his right to a
sentencing jury.

Affirmed.

[1]
Appellant committed this offense on May 15, 2005 and pleaded guilty on January
12, 2006. The law adopting changes to
the sentencing guidelines became effective on August 1, 2005. 2005 Minn. Laws ch. 136, art. 16, § 14 at
1119. Amendments to Minn. Stat. § 244.10
(2004) became effective “the day following final enactment.” 2005 Minn. Laws ch. 136, art 16, §§ 3-6 at
1115-16.